The Supreme Court’s public credibility drops to new low: Litmus tests are involved

In a display of adult self-delusion and crackpot juvenile logic, some Supreme Court justices have been publicly asserting that they are not political because sometimes they make decisions they do not like. That reasoning is nonsense. One can be a highly political judge, like all six of the radical Christian nationalist (CN) Republicans on the bench now, but still sometimes constrained by the law. Rome was not built in a day, and neither will the Republican Party’s dream of American fascism. To build a durable fascism, American democratic rule of law needs to be corrupted and subverted over time into authoritarianism. That cannot be done in a single case or even a dozen cases. It will take several years, probably at least four, assuming a Republican wins the White House in 2024.

Recent polling indicates that ~60% of Americans now view the court with disapproval. Recent court decisions that fell in line with fascist Republican and radical CN ideology appear to have had a negative impact on public opinion. The Washington Post writes: 

In emergency decisions in August and September, the court ruled against two Biden administration initiatives, ending a nationwide eviction moratorium and reimposing an abandoned immigration policy. And in a bitter 5-to-4 split that sparked controversy and prompted congressional action, the court allowed to take effect a Texas law banning most abortions after six weeks of pregnancy, while legal challenges to it continue.

“I think these last few years have really been very dangerous and potentially devastating to the Supreme Court’s credibility because the public is seeing the court as increasingly political, and the public is right,” said Sen. Richard Blumenthal (D-Conn.), who served as a Supreme Court clerk to Justice Harry A. Blackmun. “The statements by Thomas, Barrett, Breyer, you know, give me a break . . . they are just inherently noncredible.”

As expected, the radical right propaganda Leviathan has been cranked up to chime in with its faux reality. Radical right propagandists and blowhards dismiss charges of radical right politics in the court as just liberal complaints about a Supreme Court doing great job. This is as partisan as just about everything else in contested American politics.

No one on the radical right and none of the judges mention the fact that Republican nominees have to pass a number of political litmus tests to even be considered for a judicial nomination. The political tests are what one would expect. For example, Republican nominees must show themselves to staunchly opposed to abortion, gun regulation, government regulation, taxes, secularism, secular education, climate change regulation, immigration, consumer protection, civil liberties, and staunchly in favor of corporate power, rich people power and trickle-up economics. 

By definition, fascist Republican judges are pre-packaged politicians with their credentials and ideological bona fides thoroughly vetted before they can be put on the radical right, CN Federal Society’s acceptable judge list. At least for the fascist Republicans in power, this is purely political and so are their judges.

What about the Dem’s litmus tests for judges?

In 2019, some Democratic politicians indicated that for them, support for abortion rights and the 1973 Supreme Court Roe v. Wade decision was their litmus test. The Hill wrote in an article entitled, 2020 Dems break political taboos by endorsing litmus tests:

Democratic presidential hopefuls are embracing a political tool long considered taboo: setting litmus tests for potential judicial nominees.

A torrent of legislation restricting abortion rights in several states has prompted a scramble among several candidates to set more explicit ideological and jurisprudential conditions for would-be judicial nominees.

Chief among those conditions: that any potential judicial nominee back the ruling in Roe v. Wade, the landmark 1973 Supreme Court case that established a woman’s right to an abortion. So far, a handful of candidates for the Democratic nomination, including Sens. Kirsten Gillibrand (D-N.Y.) and Bernie Sanders (I-Vt.), have committed to appointing only justices that would uphold that decision.

Those pledges underscore the extent to which presidential candidates have become comfortable with shattering what has been considered largely off-limits in campaign politics. 

“There’s been a discomfort with crossing that line. I think what we’ve seen over the past three years is a breakdown in that discomfort,” Christopher Schmidt, a constitutional law professor at Chicago-Kent College of Law.

It looks like that in response to the rigid litmus tests the FRP (fascist Republican Party) now require its judicial nominees to pass, the Democratic Party has started moving in the same direction, at least on the issue of abortion. 

A personal analysis: Not all litmus tests are the same -- authoritarian vs. democratic

Demagoguery: political rhetoric, activity or practices that seek support by appealing to the desires and prejudices of ordinary people rather than by using rational argument

In my opinion, there are two fundamentally opposed mindsets at war in America’s political and legal systems. One is mostly democratic, pluralistic, secular, and in favor of relatively more wealth and power distribution to the masses. For the most part but not completely, that’s the Democrats. The other mindset is mostly authoritarian, racially and socially intolerant (I see it as an American variant of fascism) and in favor relatively more wealth and power distribution to wealthy people and powerful special interests, usually at the expense of the masses and/or the environment. For the most part and with few exceptions, that’s the FRP. Decades of RINO hunts have mostly ideologically cleansed the FRP of mental diversity. 

Based on 2010 data

One other important mindset difference is grounded in principle and morality. The democratic mindset usually relies much more on facts and reasonably sound reasoning to make its arguments and appeals for support. For that mindset, the ends do not justify the means. Inherent in the democratic mindset is an openness to accepting social change in both law and policy. 

By contrast, the fascist mindset is demagogic and relies much more on lies, deceit, irrational emotional manipulation and partisan motivated reasoning. Here, the ends justify the means, e.g., lies, fomented irrational fear, hate,  bigotry, etc. Inherent in the fascist mindset is an openness to law and policy that the elites dictate, usually in reliance on laisses-faire capitalism and/or God as moral authority. In general, society gets what it wants only if the elites, speaking for their economic ideology and/or God also want it.  

Those opposed mindsets are at war in the courts. Hence the litmus tests. If one accepts that description of the two mindsets as basically accurate, and yes, the FRP vehemently disagrees, one can see litmus tests for judges as one of two different things, mostly democratic or mostly authoritarian. Thus a judicial litmus test in favor of defending something that most of the public wants, e.g., easy access to legal, safe abortions, is different than a litmus test hell-bent on getting rid of abortion rights regardless of what the public wants.

Questions: 

1. Are all litmus tests for judges equal, or is the democratic vs authoritarian distinction argued here real and meaningful?

2. FRP elites and its propagandist Leviathan (Faux News, Breitbart, the Federalist Society, etc.) now routinely refer to the Democratic Party as radical left and socialist tyrants, but is that true, with the FRP actually being the more authoritarian and radical of the two mindsets?

3. Which mindset is currently more powerful (i) in politics and law, and (ii) in society generally, as represented by, e.g., the distribution of wealth data shown above?

The Social Dynamics of Online Communication

 

I started a little channel on Disqus in 2016, and have participated in discussions on various platforms for over a decade now. It has become very common to criticize social dynamics online, whether discussed in terms of "trolling," cyber-bullying, the dimunition of "civility," the frequently observed obsession with being "liked" and "followed" as a source of self-esteem and validation, or other related issues that have received attention in social discourse. While the resulting literature is often thoughtful (Sherry Turkle's Alone Together and Jaron Lanier's manifesto,  I Am Not A Gadget,  https://cmapspublic3.ihmc.us/rid=1MHHS4T68-C8ZML1-6DRW/YouAreNotAGadget-Jaron%20Lanier.pdf  come to mind), the problem that I'm concerned with here is more narrowly focused.  My focus here is on only one of the many problems mentioned above. To keep things simple, I'll  describe the problem in terms borrowed from  educational theorist, Alfie Kohn, in his book, No Conflict (1991). He coined a useful acronym to get at the basic issue, "MEGA."  MEGA stands for MUTUALLY EXCLUSIVE GOAL ATTAINMENT, and the psychology underlying it has deep roots in theories of cooperation and conflict.

 

 

The underlying core-belief in MEGA is that when people discuss issues on which different and strong positions/viewpoints exist, it is generally the case that it can best be understood as a "conflict" or "debate" in which one party's gain entails the other's loss (as in a zero-sum-game). Like our adversarial legal system, it presupposes that there must be a "winner" and "loser" on any issue of importance. The binary of "win" and "lose" carries with it an attitude (ranging from subtle to overt) of basic enmity. This comes up again and again whether the  mutually exclusive categories are framed in terms of  political affiliation, musical taste, philosophical theories, religious beliefs, sports or even seemingly innocuous topics like TV shows and favorite celebrities.

 

 

Back in the aughts, I began to notice youtube philosophy vids (youtube was still new then) formatted as "point-counterpoint" debates. My academic background was largely in philosophy, and so I was, at first, intrigued. One person would post a thesis or argument,  and another person would publish a rejoinder in which he or she (usually he at the time, though this has changed) tries to "defeat" the other party. If Sam argues for, say, "free will," then the response by Bill will be the most forceful attempt to show that Sam's view is dead wrong in no uncertain terms. Such debates have a place in traditional philosophy, but they also have limits. Both parties may have insights, for example, and neither may have a full and adequate account of the complex concept of free will. So there's a potential loss in terms of learning from one another or engaging in cooperative inquiry. This can be generalized to most complex conceptual discussions. If my sole focus is on "winning" an argument (where that entails the other party "loses") then I will selectively attend to what I see as the "weak points" in the other's presentation, and vice versa. I may (subliminally or consciously) skip over those portions of the content that might otherwise spur healthy *discussion* and exploration, rather than win/lose debates. It's like reducing all political discussion to Crossfire, the old show pitting "Left" and "Right" against each other. I still remember when Jon Stewart went there to satirize these hosts (esp. a young Tucker Carlson), which contributed to CNN canning the show. But the "Crossfire" mentality was never "canceled," and no matter how erudite the topic, one finds a similar interactive and cognitive style at work in many online venues, including "academic Twitter," where professors and grad students are free to express themselves in ways not entirely compatible with the norms of the classroom. 

 

 

The collapse of discussion into binary debating patterns carries more serious threats to culture than the loss of learning opportunities, though. When watching those vids back in 2006-7, I was put off by the hacker/gamer slang being used in the content, comments and titles. Typical examples might be "Sam OWNS Bill," or the offshoot, "Sam PWNS Bill" on the Question of Free Will/Existence of God/fill-in-the blank-debate. Gamer slang had colonized online public philosophy and other "erudite" realms of discourse online. According to  a Wikipedia article, "the term ["pwn"] implies domination or humiliation of a rival, used primarily in the internet gaming culture to taunt an opponent who has just been soundly defeated." https://www.abc.net.au/mediawatch/transcripts/0940_pwned.pdf It was taken by teenagers and young adult from the world of hackers where pwning basically meant controlling or compromising another computer or server. So this is more than winning a binary debate, it has a *hostile* connotation, to put it mildly. Ownership of another person is, by definition, chattel slavery. While this is obviously not what is being endorsed online,  the meanings of words have consequences, and as authors like George Lakoff have argued, the "metaphors we live by" say much about our underlying cognitive and social structures. (see his book with Mark Johnson,  Metaphors We Live By: U of Chicago: 1980). These terms, and the metaphors they invoke (e.g. "ownership" of another) seem to encourage some degree of dehumanization of those with whom we disagree.

 

 

More recently, during the 2010s, we've seen the strategical application of these terms, as in the case of "owning the libs." Self-described "liberals" and "progressives," on the other hand, tend to use more generic insults including "moron," "loon," "loser" and "idiot" to label opponents on the Right. https://qz.com/291533/this-is-how-liberals-and-conservatives-insult-each-other/  There are certainly high-stakes conflicts in policy, but depicting them in terms more appropriate to a grade-school playground than town hall meeting actually obscures and emotionalizes matters, generating more heat than light. It dumbs down political culture ever more drastically, and engenders a culture of round-the-clock toxic hostility. While it's true that in politics the history of this hostile style of discourse owes more to Right Wing radio shows than it does to Left Wing culture, this doesn't explain the appeal of the hostile MEGA interaction style now pervading discussions in domains as "refined" as philosophy, or religion among people across the political spectrum. For example, the New Atheism debates-- both pro and con-- of the noughties were characterized by much of the "pwning" and "owning" tropes; and discussions in that domain are still largely fought in crudely insulting and aggressive terms, even if the slang has changed. 

 

 

I think it's easy for most of us to spot these behavioral traits and patterns in others, but how carefully do we evaluate our own output? Why does a blog-site like this one need to state, as a "rule," no less, "Don't be an asshole?" I'm not criticizing the rule, but questioning the conditions that give rise to it. Surely it is addressed to the actual and potential users of this site. To me, to you, to all. We think nothing of such "rules" at this point. It's a perfectly reasonable reminder given the state of interaction these days, right? I find it telling that such a "rule" blends into the background of consciousness like wallpaper. That is, it does not appear to jolt, jar, surprise or confuse anyone (correct me if I'm wrong and it has surprised you in the past). In a sense, it is an acknowledgment of one of the most serious problems we face today in culture and politics, and it would be interesting to see a calmly written post on exactly what it is that makes one an "asshole" online. What are the criteria? When did the traits in question become so omnipresent as to require such rules and warnings? What have we let ourselves become? How might we move towards more humane encounters with one another? 

 

 

I have not answered those questions here. This is intended more as a spur to further thought on the issue. I think it's important to note that from the beginning of Web 2.0 (from the aughts to present), this mentality or interpersonal style was not originally linked solely to politics, but came from a gamer (win or lose) MEGA mentality, in which others are experienced as adversaries to be dominated and humiliated rather than potential partners in prosocial dialogue and discussion. So, while this has certainly been evident and toxic in our politics, the mentality is deeper. Perhaps, in another OP, I will explore socio-historical roots of the problem. But for now I'm more interested in hearing from others. 

 

 

Questions: 

 

Am I exaggerating the problem?

 

 Do you think the problem is unique to a certain ideological/political/cultural groups that you oppose, or do you see it as a pervasive aspect of communication in culture and society? 

 

Have you ever insulted others in the heat of the moment while writing comments? Have you ever been hurt or upset as the recipient of such insults? What do you think are some of the causes of this phenomenon, and how might it be diminished and/or counteracted?

The crisis explodes: The fascist Republican attack on democracy, elections and truth intensifies

In what is among the starkest evidence of an full-blown FRP (fascist Republican Party) attack on democracy, truth and elections, the results of the Arizona (AZ) audit from yesterday unleashed an immediate, blistering response from radical right Republicans. The audit triggered a bizarre outpouring of crackpot conspiracy theory drivel by fascist Republicans in AZ. It also triggered crackpottery in Texas (TX), where the 2020 election was not contested by the FRP until yesterday by Fascist Donald, our ex-president.

On yesterday’s Rachael Maddow show, Maddow reported that the AZ FRP continued to question the legitimacy of the election. AZ Republicans leveled crackpot allegations about election fraud that made no sense whatever. For example, the AZ FRP questioned that a server in the Maricopa county recorder’s office was found to link to the internet and that somehow could have been a source of election fraud.

Maricopa county officials spent the day rebutting astonishing FRP ignorance, lies and crackpottery that exploded after the audit results were released. In the case of the server, county officials explained that the server was to the county recorder’s office website server and it functioned to link the website to the internet. That server had nothing to do with the election.

It was clear that the attack on the 2020 election that the AZ FRP unleashed immediately after the audit results were released was planned in advance. It had to be more than a mere spontaneous outburst of frustrated disappointment. The FRP knew the audit would confirm the 2020 election result, but that it was critical to continue and intensify the attacks on the election.

This is far worse than merely irresponsible, it is a blatant  

fascist Republican attack on democracy, elections and truth

Within hours of Fascist Donald’s demand to have the election in TX audited, the state legislature called for and started a forensic audit. The fascist won the TX election, but the audit has nothing to do with the statewide vote. The audit is confined to the four main Democratic counties in TX. In the minds of the entire FRP nationwide, it is undeniable and blatant that only Democrats commit election fraud and the FRP damn well will put a stop to it one way or another. This is a national FRP strategy. This attack is not over yet. We are now in the middle of an all-out, radical right war against democracy, elections and truth.

Fascist Donald demands an election audit in Texas and

the TX FRP legislature immediately complies

Maddow also interviewed Republican strategist Steve Schmidt. Schmidt made it clear that he believed that the FRP is now highly radicalized and openly attacking democracy and elections, putting us in in a crisis, the magnitude of which he states is is hard to overstate. His thinking is that 

    (1) on the one hand the FRP is fomenting chaos and confusion, e.g., by open attacks on elections and its public threats to default on the federal debt by refusing to raise the debt limit, but 

    (2) on the other hand FRP rhetoric is selling law and order to the public to get support and votes. 

See the YouTube video at the top.

Maddow believes that, absent a failure of his health or some other major incident, it is certain that Fascist Donald will be the FRP’s candidate for president in 2024.

Finally, there is this urgent warning from a hard core conservative, Robert Kagan, writing an opinion piece two days ago for the Washington Post entitled, Our constitutional crisis is already here: 

The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt:

First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running.

Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump’s charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way. Some Republican candidates have already begun preparing to declare fraud in 2022, just as Larry Elder tried meekly to do in the California recall contest.

Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office. Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote. Some state legislatures seek to impose criminal penalties on local election officials alleged to have committed “technical infractions,” including obstructing the view of poll watchers.

The stage is thus being set for chaos. Imagine weeks of competing mass protests across multiple states as lawmakers from both parties claim victory and charge the other with unconstitutional efforts to take power. Partisans on both sides are likely to be better armed and more willing to inflict harm than they were in 2020. Would governors call out the National Guard? Would President Biden nationalize the Guard and place it under his control, invoke the Insurrection Act, and send troops into Pennsylvania or Texas or Wisconsin to quell violent protests? Deploying federal power in the states would be decried as tyranny. Biden would find himself where other presidents have been — where Andrew Jackson was during the nullification crisis, or where Abraham Lincoln was after the South seceded — navigating without rules or precedents, making his own judgments about what constitutional powers he does and doesn’t have.

Today’s arguments over the filibuster will seem quaint in three years if the American political system enters a crisis for which the Constitution offers no remedy.

Most Americans — and all but a handful of politicians — have refused to take this possibility seriously enough to try to prevent it. As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian. They have followed the standard model of appeasement, which always begins with underestimation. The political and intellectual establishments in both parties have been underestimating Trump since he emerged on the scene in 2015. They underestimated the extent of his popularity and the strength of his hold on his followers; they underestimated his ability to take control of the Republican Party; and then they underestimated how far he was willing to go to retain power. The fact that he failed to overturn the 2020 election has reassured many that the American system remains secure, though it easily could have gone the other way — if Biden had not been safely ahead in all four states where the vote was close; if Trump had been more competent and more in control of the decision-makers in his administration, Congress and the states. As it was, Trump came close to bringing off a coup earlier this year. All that prevented it was a handful of state officials with notable courage and integrity, and the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate.

These were not the checks and balances the Framers had in mind when they designed the Constitution, of course, but Trump has exposed the inadequacy of those protections. The Founders did not foresee the Trump phenomenon, in part because they did not foresee national parties. They anticipated the threat of a demagogue, but not of a national cult of personality. They assumed that the new republic’s vast expanse and the historic divisions among the 13 fiercely independent states would pose insuperable barriers to national movements based on party or personality. “Petty” demagogues might sway their own states, where they were known and had influence, but not the whole nation with its diverse populations and divergent interests.

Such checks and balances as the Framers put in place, therefore, depended on the separation of the three branches of government, each of which, they believed, would zealously guard its own power and prerogatives. The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible. Nor did they foresee that members of Congress, and perhaps members of the judicial branch, too, would refuse to check the power of a president from their own party.

The Trump movement might not have begun as an insurrection, but it became one after its leader claimed he had been cheated out of reelection. For Trump supporters, the events of Jan. 6 were not an embarrassing debacle but a patriotic effort to save the nation, by violent action if necessary. As one 56-year-old Michigan woman explained: “We weren’t there to steal things. We weren’t there to do damage. We were just there to overthrow the government.”

The banal normalcy of the great majority of Trump’s supporters, including those who went to the Capitol on Jan. 6, has befuddled many observers. Although private militia groups and white supremacists played a part in the attack, 90 percent of those arrested or charged had no ties to such groups. The majority were middle-class and middle-aged; 40 percent were business owners or white-collar workers. They came mostly from purple, not red, counties. 

The events of Jan. 6, on the other hand, proved that Trump and his most die-hard supporters are prepared to defy constitutional and democratic norms, just as revolutionary movements have in the past. While it might be shocking to learn that normal, decent Americans can support a violent assault on the Capitol, it shows that Americans as a people are not as exceptional as their founding principles and institutions. Europeans who joined fascist movements in the 1920s and 1930s were also from the middle classes. No doubt many of them were good parents and neighbors, too. People do things as part of a mass movement that they would not do as individuals, especially if they are convinced that others are out to destroy their way of life.

It would be foolish to imagine that the violence of Jan. 6 was an aberration that will not be repeated. Because Trump supporters see those events as a patriotic defense of the nation, there is every reason to expect more such episodes. Trump has returned to the explosive rhetoric of that day, insisting that he won in a “landslide,” that the “radical left Democrat communist party” stole the presidency in the “most corrupt, dishonest, and unfair election in the history of our country” and that they have to give it back. He has targeted for defeat those Republicans who voted for his impeachment — or criticized him for his role in the riot. Already, there have been threats to bomb polling sites, kidnap officials and attack state capitols. “You and your family will be killed very slowly,” the wife of Georgia’s top election official was texted earlier this year. Nor can one assume that the Three Percenters and Oath Keepers would again play a subordinate role when the next riot unfolds. Veterans who assaulted the Capitol told police officers that they had fought for their country before and were fighting for it again. Looking ahead to 2022 and 2024, Trump insists “there is no way they win elections without cheating. There’s no way.” So, if the results come in showing another Democratic victory, Trump’s supporters will know what to do. Just as “generations of patriots” gave “their sweat, their blood and even their very lives” to build America, Trump tells them, so today “we have no choice. We have to fight” to restore “our American birthright.” (emphases added)

 

Questions: 

1. Is there an urgent crisis unfolding right now in American politics, or is this mostly just politics as usual, maybe with some hair on fire freaks and/or some unusually overheated rhetoric from a few crackpots and radicals that are harmless fringe nutters outside the circles of relevance, influence and/or power? 

2. Absent a failure of his health or some other major incident, is it likely that Fascist Donald definitely is going to be the FRP nominee for president in 2024, as Maddow and Kagan assert?

3. Does the evidence accumulated so far that the FRP (i) is anti-democratic and authoritarian or fascist, and (ii) is openly attacking democracy, elections and truth, and if so, does that (a) amount to a reliable proof thereof, and if so, (b) engaging with denials of that proof amounts to false balancing or bothsidesism?[1]

Footnote: 

1. False balancing, also called bothsidesism, exists when the evidence is sufficient to show that arguments against the proven side are not even worth engaging with because it elevates false information, lies, deceit, crackpottery or motivated reasoning, and/or etc. to the same level as actual facts, true truths and sound reasoning. 

Wikipedia describes it like this: False balance, also bothsidesism, is a media bias in which journalists present an issue as being more balanced between opposing viewpoints than the evidence supports. Journalists may present evidence and arguments out of proportion to the actual evidence for each side, or may omit information that would establish one side's claims as baseless. False balance has been cited as a cause of misinformation.

Biden Thanks Arizona G.O.P. for Letting Him Relive Greatest Victory of His Life

 WASHINGTON —In an extraordinary expression of gratitude to his political foes, President Biden thanked the Arizona G.O.P. for allowing him to relive the most glorious victory of his life.

Speaking from the White House, Biden said, “The election was almost a year ago, and the memory of that amazing achievement had really started to fade. Thanks to the Arizona Republicans, all those wonderful memories have begun flooding back.”

The President added that he was indebted to the Arizona G.O.P. for “giving me a lift when I needed it most.”

“Let me tell you, this job is a killer, Jack,” he said. “Some days can get very, very dark. But thanks to the Arizona Republicans there’s a smile on my face and a skip in my step again.”

Biden noted that Pennsylvania Republicans, following in the footsteps of their Arizona brethren, are about to let him relive his greatest win yet again. “All I can say is, thanks, man,” he said. “You guys are the best!”

https://www.newyorker.com/humor/borowitz-report/biden-thanks-arizona-gop-for-letting-him-relive-greatest-victory-of-his-life

How radical right Christian nationalism sees civil liberties in legal battles

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.” -- former US Attorney General, Edward Levy, An Introduction to Legal Reasoning, 1949 (the legal view expressed here, American legal realism, is now locked in a bitter fight against Christian nationalist legal theory that holds the Constitution and law to be frozen in time and Christian fundamentalists are the ones who know what the Constitution means, not the legal realists -- at present, the CN's fundamentalist biblical worldview dominates the US Supreme Court)

An amicus brief in support of a draconian Mississippi anti-abortion law was filed in a lawsuit now before the Supreme Court. The brief exemplifies some of the thinking behind radical right Christian nationalist (CN) ideology and intent. These people are dead serious about gutting abortion rights and other civil liberties. This brief reveals the intensity of the legal war that bigoted fundamentalist Christianity is now waging against, e.g., democracy, secularism, pluralism, mainstream social norms and civil liberties in America.

This case is important because it could be the one the radical CN judges decide to use to overturn Roe v. Wade (1973) and either (i) leave abortion rights up to the states, or (ii) mostly or completely eliminate the legality of abortions nationwide. This might be the moment that fundamentalist Christians have been fighting for beginning some time after the Roe decision. We will find out on or before June 30, 2022, the last day of the current Supreme Court term. Oral arguments in this case are scheduled for Dec. 1.

Attacking reliance interests

When the Supreme Court considers overturning a precedent, it can choose to consider if getting rid of the precedent, Roe in this case, would harm people by pulling the legal rug from under them as they acted in reliance on the precedent. Specifically, does a woman who gets unintentionally pregnant after consensual sex have any reliance interest in her right to an abortion if she chooses to abort the fetus? The CN legal argument is that Roe and a related case, Planned Parenthood v. Casey, (1992) show that there are no reliance interests at stake and thus the court can overturn Roe without harming anyone. The Casey case was decided in part on a court majority that argued there is a reliance interest. The amicus brief attacks the reliance interest argument like this:

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992), a plurality of justices doubled down on this court-invented right, while announcing a new and amorphous “undue burden” standard to judge the constitutionality of pre-viability restrictions on abortion. This fabrication atop a fabrication has proven to be non-falsifiable, as there is no way to determine when a “burden” crosses the line from “due” to “undue,” apart from a judge’s personal desire to see an abortion regulation enforced or thwarted.

In its attack on Casey, the CN brief addresses the issue that Casey court raised about abortion being needed for women to control their reproductive lives. The brief attacks this idea and coldly rejects it as nonsense: 

The third problem is with the Casey plurality’s false assertion that women would no longer “control their reproductive lives” if Roe were to be overruled. See Casey, 505 U.S. at 856 (plurality opinion). Women can “control their reproductive lives” without access to abortion; they can do so by refraining from sexual intercourse. The only time abortion is needed to ensure women’s ability to “control their reproductive lives” is when a pregnancy results from non-consensual behavior as in cases of rape, or when a pregnancy is endangering her life.  

So there you have it, a woman who gets pregnant after consensual sex and becomes pregnant with an unwanted fetus bears the responsibility for her choice. In CN legal thinking and religious morality, forcing a woman by law to carry a pregnancy to term and bear an unwanted child has no impact on her control of her reproductive life. There is not one shred of fundamentalist Christian understanding or empathy for the fact that a pregnancy might be unwanted or arise despite the proper or improper use of contraception by one or both parties. 

As Christian fundamentalists see this, it is the woman's choice to have sex and bear the life-changing consequences of an unwanted pregnancy. She assumed the risk. God demands the law to be this way.

Court credibility

In what is circular reasoning, the brief also rejects the idea that if the court overturns Roe, the public will see that as a political decision, not a legal one:

Pro-abortion commentators have become fond of saying that the Court’s “institutional credibility” will be harmed if the Court overrules its lawless and unconstitutional ruling in Roe. But they never explain what, exactly, they mean by this. If their point is that overruling the court-invented right to abortion will engender criticism and opposition, they are surely correct. The editorial pages of the nation’s newspapers will be very unhappy if the Court overrules Roe. Pro-abortion politicians will denounce the Court. And pro-abortion law professors will circulate and sign letters bemoaning the Court’s decision. 

But why should anyone think that will hurt the Court’s institutional credibility? The Court’s institutional credibility comes from its demonstrated adherence to the Constitution and the laws—not from whether its decisions find approval from newspaper editorialists or the managerial class. There will always be cynics who view the Court as nothing more than a political institution, and those are the people who are pressuring the Court to retain Roe when they know full well that there is nothing in the Constitution that can possibly support the decision. Trying to preserve the Court’s “institutional credibility” with that audience is a fool’s errand. These are the legal realists who have given up on the idea of law and regard the judiciary as nothing but a tool through which they impose their preferred policies on the nation.

So there you have it, plain as day. People who see politics in a court decision dominated by radical right CN judges who were put on the court by having necessarily passed political litmus tests, specifically including intense CN antipathy to abortion rights and the Roe decision, are just a bunch of implacable cynics. 

As we know, cynics usually act out of ill-will and bad faith. Those cynics include Democratic justices on the Supreme Court who might oppose overturning Roe. Obviously, all Democrats and other people who see politics in overturning or restricting Roe are cynics. Only righteous fundamentalist Christians and people agree with them can act in goodwill and good faith. 

So, are are the legal realists the ones who have given up on the idea of law and regard the judiciary as nothing but a tool through which they impose their preferred policies on the nation, or is that mostly the domain of self-righteous CN radicalism? Notice that that reference to “legal realists” is a direct attack on American legal realism, discussed here in the 1949 book, An Introduction to Legal Reasoning. 

Legal realism sees the law as changing with society and technology, in part because the law is so hard to change and in part because congress is inept in drafting laws[1] and in part because of some other things. In that book, one can see the seeds of conflict between the Constitution as a living document vs the Constitution as a frozen in time document, which modern CN legal reasoning relies heavily on. For the CN political movement, God is the arbiter of the meaning and scope of the frozen document and courts have nothing to do with it except to express God’s will.

In addition to its attack on abortion rights, the brief includes a blast at the 2015 Obergefell v. Hodges Supreme Court decision that held there was a right to marriage for same-sex couples.[2] The CN movement and its ideology are almost as hostile to same-sex marriage and the LGBQT community as it is to abortion, which it sees as murder. Same-sex marriage is merely an abomination in God’s eyes, but not murder.

Questions: Who are the cynics here, frozen in time CN radical fundamentalists or not frozen in time legal realists? Is most of the American public aware of the high stakes in legal battle between legal realism and Christian fundamentalist legal dogma, e.g., an authoritarian fundamentalist Biblical, White race-centric worldview and law vs. secularism, pluralism, civil liberties and democracy? 

Footnotes: 

1. Regarding congressional incompetence, this was by the radical right extremist Ben Sasse (R-NE), during the bitter Senate confirmation hearings for Brett Kavanaugh: 

“. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

2. The brief includes this blast at same-sex marriage:

The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. See Lawrence, 539 U.S. 558; Obergefell, 576 U.S. 644. These “rights,” like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence. Mississippi suggests that Obergefell could be defended by invoking the “fundamental right to marry” which is “ ‘fundamental as a matter of history and tradition.’ ” But a “fundamental right” must be defined with specificity before assessing whether that right is “deeply rooted in this Nation’s history and tradition.” See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (requiring federal courts to employ a “careful description” of conduct or behavior that a litigant alleges to be protected by the Constitution, and forbidding resort to generalizations and abstractions). Otherwise long-prohibited conduct can be made into a “fundamental right” that is “deeply rooted in this Nation’s history and tradition,” so long as a litigant is creative enough to define the “right” at a high enough level of abstraction. The right to marry an opposite-sex spouse is “deeply rooted in this Nation’s history and tradition”; the right to marry a same-sex spouse obviously is not.

This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe. (emphasis added)

Leave lawless same-sex marriage rights hanging by a thread. The CN legal strategy, just like its sacred ideology, is deeply anti-civil liberties, except for White Christians, especially males. That is just how God wants it. “Hanging by a thread” same-sex marriage rights is what the CN Supreme Court just might deliver sometime next June, along with its decision about Roe.

Trump sues niece, NY Times over records behind ’18 tax story

 NEW YORK (AP) — Former President Donald Trump on Tuesday sued his estranged niece and The New York Times over a 2018 story about his family’s wealth and tax practices that was partly based on confidential documents she provided to the newspaper’s reporters.

Trump’s lawsuit, filed in state court in New York, accuses Mary Trump of breaching a settlement agreement by disclosing tax records she received in a dispute over family patriarch Fred Trump’s estate.

The lawsuit accuses the Times and three of its investigative reporters, Susanne Craig, David Barstow and Russell Buettner, of relentlessly seeking out Mary Trump as a source of information and convincing her to turn over documents. The suit claims the reporters were aware the settlement agreement barred her from disclosing the documents.

The Times’ story challenged Trump’s claims of self-made wealth by documenting how his father, Fred, had given him at least $413 million over the decades, including through tax avoidance schemes.

more on this story:

https://apnews.com/article/donald-trump-courts-lawsuits-business-newspapers-da4689bcce1e58c15fc909377fa3a450